European Union (Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

Committee: 7th sitting (Hansard): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Lord Liddle]

My Lords, I just want to get Amendment 196 on the record, because it makes helpful points which should be taken into account by noble Lords when we come to devise a composite amendment on Report. That is why I am anxious to speak and I am sorry if I have upset the noble Lord, Lord Hannay.

We have had many excellent speeches. I think the three by the noble Viscount, Lord Hailsham, the noble Lord, Lord Patten, and my noble friend Lord Reid are among the best I have heard on this Bill and perhaps even since I have been a Member of this House. I fully support what they said.

The purpose of Amendment 196 is to build on the Grieve amendment that is now incorporated in the Bill. En passant I will say from this side of the House how much I respect the bravery of the Conservative MPs who voted for that amendment and put the national interest first. If they had not done that, a lot of the point of our proceedings would have been removed—so I respect them enormously.

The merits of Amendment 196—I will be very brief—are, first, that it specifies a date by which the Government have to produce their withdrawal agreement: 31 October 2018. That would prevent any attempt to bounce a last-minute decision through Parliament. Secondly, it attempts to deal with two eventualities: not just the eventuality of no agreement and no deal being reached in Brussels but also a failure on the part of the House of Commons to agree to and adopt the resolution that the Government will put forward seeking to endorse that agreement.

It does not give the House of Lords a veto. I agree with what the noble Viscount, Lord Hailsham, said: these matters fundamentally have to be decided by the Commons. This amendment allows the Commons to consider a whole series of options, including the extension of Article 50.

[Lord Kerr of Kinlochard (CB)]

I am grateful to the noble Lord. I agree very much with what he said about the speeches from the noble Lords, Lord Reid and Lord Patten, and the noble Viscount, Lord Hailsham.

I am concerned about the point he is on now. Subsection (2)(b) of the clause proposed by Amendment 196 seems to me to open the possibility of a period after we have left the European Union before we have any agreement with it in respect of the terms of withdrawal. That would be an extremely dangerous legal vacuum.

One of the desirable features of the Mansion House speech was that we had no more nonsense about no deal being better than a bad deal. It was clear that the Prime Minister wished to do a deal. It is very important that, if we leave the European Union, we do so on the basis of agreement with it on the terms of our withdrawal. If not, our position with third countries would be impossible and they would be unable to do business with us until we had established a secure position with the European Union—and, of course, our position with the European Union would be pretty bad. So I agree with the spirit of this amendment—indeed, I agree with the spirit of all the amendments in this group—but it seems to me that there is a real danger lurking in the wording of subsection (b).

[Lord Liddle]

If the noble Lord, Lord Kerr, thinks there is a danger, we will have to look at it again because I so respect his judgment. I certainly do not want to create a legal vacuum; I want to see the possibility of an extension of Article 50 as one thing that Parliament might do if it decided to reject the Motion on the withdrawal agreement. I also think that it would be appropriate for the Commons to decide on any other course—and certainly I agree with the noble Viscount, Lord Hailsham, that a referendum would be a possibility in those circumstances. How can we possibly judge at this stage what those circumstances will be? We have to have in our amendment—while maintaining legal certainty—the possibility of the Commons being able to decide on a number of different things.

European Union (Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, as a co-signatory to the amendment, I shall briefly make three points. My first is to correct something said by the noble and learned Lord, Lord Hope of Craighead. He said that the smooth running of the early years of devolution was because we had a Labour Government in Westminster and a Labour Government in the Scottish Parliament. In fact, it was a Labour-Liberal Democrat coalition in the Scottish Parliament. That is an important difference.

Secondly, I endorse what the noble and learned Lord said when he gave the example of orders under the European Communities Act 1972 and the memorandum of understanding between the Scottish Government and United Kingdom Government on consultation, and how these might be taken forward. My experience in the Scottish Executive at the time was that it worked. I can say that because I cannot remember an issue over which there was any major dispute. It is also fair to say that I cannot think of any major dispute on that kind of area, some of which was very technical, while the Scottish National Party was in either minority government after 2007 or majority government after 2011. It is possible on a whole range of technical issues to get some common- sense agreement. That is why we should persevere.

Thirdly, the noble Baroness, Lady Finlay, said that underlying the amendments is an effort to have building blocks for trust. I shall not repeat the arguments I made in the previous debate other than to say to the noble Lord, Lord Bourne, that, like the noble Lord, Lord Deben, I appreciated his comprehensive response to it. He seemed to suggest that I had spoken about allowing a veto over areas that were non-devolved. Given that the previous amendments were about modifications to the Scotland Act, I do not think anything I said could have given that implication. Here, where we are talking explicitly about matters within the devolved competence of Scottish Ministers, that cannot be said either. I think there is something we can build on there.

[Lord Kerr of Kinlochard (CB)]

I share the admiration of the noble Lord, Lord Deben, for the way in which the Minister summed up the previous debate. He was a rather brilliant performer of the work of the fire extinguisher. Foam was spread over all of us and calm ensued. It was a brilliant performance.

I am sorry that, this time, the Minister has to deal with pyrotechnics from a pyromaniac, in his colleague, the noble Lord, Lord Forsyth of Drumlean. It is rather a pity that the attacks of the noble Lord, Lord Forsyth, on the party now governing in Scotland are responded to only by a Welshman, the noble Lord, Lord Wigley. He responds very well, but, as a Scotsman who does not support the Scottish National Party, it seems to me rather an easy trick to score pyrotechnical victories against an opponent who is not in the room.

Trust is what this is all about. I can see nothing wrong with this amendment; I cannot see any reason why Ministers should not buy it now. If they cannot, a discussion needs to start. It does not help to insult the party in office in Edinburgh by implying motives. It may well have such motives, but they were not those it explained when it published a perfectly reasonable economic analysis at the end of last year which established clearly the damage that will accrue to Scotland from leaving the single market. The scale of the damage was almost exactly the same as what we have now seen in the Treasury analysis for the United Kingdom as a whole—eight, five, two: the same numbers pop up in both studies. The Scots are not being unreasonable or necessarily malicious when they say that they would prefer to remain in the single market. Of course, the market of the United Kingdom is more important to Scotland than the market of the rest of Europe, but that is not the point; they do not want to have to choose. That seems a perfectly reasonable position to adopt. It does not help establish trust to insult them.

[Baroness McIntosh of Pickering]

My Lords, I had no intention to speak, but having added my name to Amendment 124, I want entirely to endorse what was said by the noble and learned Lord, Lord Hope of Craighead, in introducing it. I want also to refute any allegation that I am an ideologue; I have always considered myself a pragmatist. It is unfair to impute a position to a party that is not represented in this House and cannot answer back to any of the allegations made previously.

I believe that this amendment goes to the heart of the consent and trust that has been debated here at great length. I declare a vested interest in that I am doing some work and I visited the offices that my noble friend Lord Forsyth opened: the Water Industry Commission for Scotland is doing some great work across the European Union, as indeed is Scottish Water, providing technical assistance. Obviously, one hopes that that work will continue after Brexit day. I do not see this amendment, spoken to by the noble and learned Lord, Lord Hope, or the amendment of the noble Baroness, Lady Suttie, as the tail wagging the dog: this is simply an effort to bring the Scottish, the Welsh and the Northern Irish people with the Government of the day.

European Union (Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

Exactly. I strongly support what the noble Lord, Lord Liddle, has just said. I would like to be helpful to the Minister—it is my main purpose in life. I detect that this debate is at present all going one way, although I do not know if the Minister agrees with me on that. If he is a cynic, he might say that that is not altogether surprising, as the collective noun for a group of chancellors, vice-chancellors and university chairmen is the House of Lords.

It is important that the Minister should listen to the Cormack-Deben advice. It really would not do to answer this debate with the same answer he started off with to the last debate about medicines and Amendment 11—where, as I recall, his line was that publishing a strategy would introduce an unwelcome, undesirable and impossible delay to commencement. I may have misunderstood him, but it seems to me that the time when we need such a strategy—the strategy that is called for in this amendment—is now. We need it to be helpful to the Minister because if on Report we do not see a strategy, there is absolutely no doubt how the House would vote. This debate has made very clear, from all sides of the House, that continued membership or a close relationship with the research framework programme and with Erasmus is seen as sine qua non. If the Government do not give us the strategy which they think may achieve that, I am confident we will vote for these amendments.

The strategy would have to contain a little more than a declaration of intent. In relation to Erasmus, it would, as the noble Lord, Lord Liddle, said, have to include something about visas. I think it would also have to include something about fees. It is relatively easy to see what one would have to say. On the much bigger issue of research, it would have to include something from the Treasury. If the sensible suggestion from the noble Lord, Lord Patten, was accepted by the Treasury, that would be excellent. But it seems to me that the Treasury is going to have to accept a lesser commitment, which is that when it is pay as you go—which is what it is going to be, as my noble friend Lord Hannay has pointed out—we will pay for whatever we get. That seems to me to be a sine qua non.

It is of course the case that we will not be taking the decisions or laying down the policy anymore. But it will still be essential for our universities to have access to these networks. This would not just be helpful for the Minister on Report and in the negotiations in Brussels, where such a Cormack-Deben voluntary offer would go down extremely well, but also be something to deal with the uncertainty problem which the noble Baroness, Lady Royall, drew attention to. We are no longer desirable partners in research networks, because it is assumed that we will be country cousins or non-players.

We are no longer receiving the same demand from foreign students to come here to research. We are damaging the sector now—this is an area where the damage of Brexit precedes the deed. So in three contexts, it would be helpful to the Minister if he would say that he will take this away and think about producing a government strategy in both areas before Report.

[Lord Adonis]

My Lords, I agree with every word that the noble Lord, Lord Kerr, has just uttered. The noble Lord, Lord Patten, said that we were not expecting miracles from the Minister. I think even the Minister’s most ardent admirers do not credit him with miraculous powers, and he is not going to able to produce any rabbits out of a hat for us this evening. But it is not miracles we need here: all we need is a continuation of the status quo. This is one of those areas we come back to time and again—we had it in the long debate on Euratom last week: all we need to do is to avoid massive, self-inflicted damage.

There is no need to create whole new programmes and ways of working. We have Horizon 2020 and Erasmus; the latter has been going on for the best part of 30 years and is a highly successful programme. When you are doing something well, the usual trick is just to keep on doing it. There are so many things that do not work that the idea that Parliament and Government should be spending their time dismantling things that do is clearly crazy. What we want to hear from the Minister is simply that he is open-minded to continuing with the present arrangements. The sooner the Government are prepared to say that, the better.

The most telling contribution to this debate came from the noble Baroness, Lady Brown of Cambridge. In the higher education world, there is—I shall choose my words slightly diplomatically—a pronounced air of self-congratulation on how excellent everything is in this country and how brilliantly we do it, and if only the rest of world copied us then they would be a great deal better off. In many areas that is true, but in one we have a very poor international record: the propensity of our students to study abroad. According to the Erasmus figures, twice as many European students come to Britain as Brits go abroad. The noble Baroness was right to say there is a big problem with students from poorer backgrounds studying abroad. When I was preparing figures for this debate, I found that it looks as if Singapore, a country less than one-tenth the size of the UK, has about as many students studying abroad as we have in our entirety.

The fact is that we do not have nearly enough of our students studying abroad. When I visited Singapore as Minister for Schools, they were aiming—by about now, so maybe they have achieved it—at requiring all students at the National University of Singapore, regardless of their course, to spend at least six months, one semester, studying abroad. Can your Lordships imagine if we had anything like that commitment here? It might be a good thing if in due course we did. The great irony is that one of the great slogans to emerge from this Brexit policy as it has developed is “Global Britain”—but how can there ever be a global Britain unless far more of our students go and see the rest of the globe and spend time studying there? The first requirement for that is that we should not make the situation worse than it currently is.

The noble Lord, Lord Kerr, was right that what we seek from the Minister is not a miracle; we are clearly not going to get that from the present Minister. We simply expect a commitment to continue with the current programmes, and it is absolutely within the scope of the Government to say unilaterally that the negotiating position of Her Majesty’s Government now, in 2018, is that these programmes will continue with full British participation after 2020. If the Minister does not say that, he is staring at near-certain defeat on this issue on Report.

European Union (Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 21st February 2018 Lords Chamber

[Lord Robathan]

My Lords, in 1997, I—together with other Members of this House, including, I recall, the noble Lord, Lord Davies—was returned as a Conservative MP to the House of Commons. I quickly learned what it was like to be in a minority. I fear that I also find myself in a minority in this House today. I may be in a minority in this House, but it comforts me to know that outside this House I am not in a minority.

However, I think I am in a majority in this House when I say that I am not in favour of referendums. I think they are a terrible idea: look where they have led us. But whatever we think, we have had one. The noble Lord, Lord Newby, talked about misleading the British people. I shall be brief about this, he will be pleased to know, because that is where we should start, and finish. During the referendum campaign the Prime Minister at the time, and also George Osborne and Michael Gove, specifically said that we would have to leave the single market. People may not have paid attention, but that is neither here nor there. I think that we will also find that they said we would have to leave the customs union. But people were not very interested.

As regards the customs union, may I draw attention to the fact that the Conservative Party general election manifesto said that we would leave the single market and the customs union?

[Lord Kerr of Kinlochard (CB)]

Does the noble Lord recall Mr Boris Johnson’s riposte to the Prime Minister? He said, “Nobody is even talking about leaving the single market”?

[Lord Robathan]

The noble Lord has a much better memory than me: no, I do not. But then I do not agree with everything people on my side say—or, indeed, people on the other side. On the Labour Party general election manifesto, perhaps someone on the Labour side can illuminate me. I do not know what it said, but I am pretty sure it was talking about leaving the single market—and what about the customs union?

This is where we stray in talking about misleading the British people. They are the people who have the say here, not people like ourselves, sitting round in this House, who are not elected—and in some cases have never been elected. We have heard about the curtain in 100 Parliament Street and all that sort of thing. Economic predictions are all well and good—and may, of course, be right. There is one out today by the Institute of Economic Affairs, which takes an entirely contrary view—and my noble friend Lord Lamont mentioned the Civitas review. Who knows, in 10 years’ time we may say, “Gosh, they were all wrong”. However, let us not put too much faith in one review. I am not criticising civil servants, but that applies especially when the people writing these things are the same people who wrote that we would have a recession, half a million people unemployed, an emergency Budget and so on, if we voted to leave the EU—not if we left, but if we even voted to leave.

--- Later in debate ---

[Lord Kerr of Kinlochard]

I should like to respond briefly to what the noble Lord, Lord True, has said. He refers to the Article 50 date. Without deciding where we wanted to go, we chose to send in an Article 50 declaration on 29 March. That meant that we chose when the clock would start ticking. That is my answer to the noble Lord, Lord Hamilton—like Nelson, I cannot resist provocation from a Hamilton. However, there is not a single Article 50 date. There is provision in the article for the possibility of an extension and there is also provision for the exit date to be after the two-year period. If you read the article carefully, you will see that you are out after two years or when the withdrawal agreement comes into effect, so there is the possibility of a post-dated cheque.

In my view, the noble Lord, Lord Triesman, is exactly right. Flexibility in negotiation is extremely important. Giving yourself deadlines is crazy, as is surrounding yourself with red lines. The reading of Article 50 by the noble Lord, Lord Hain, is, in my humble view, completely correct. However, the big point in this debate is not that; it is the question of who takes back control. Who decides? Is it the Executive or the legislature? So the point raised by the noble Lord, Lord Tyler, is extremely important.

I end by saying that I warmly welcome what the noble Lord, Lord True, said about the Good Friday agreement and the Belfast treaty of 1998, and in particular what he said about Prime Minister Major. To someone like me who was an observer at the time, it is completely correct. I remember when the leader of the Opposition, Mr Blair, went to Washington when I was the ambassador there. He was asked about Northern Ireland and what he would do if he became Prime Minister. His reply at my dinner table to assorted Senators and the Vice-President was that he would try to do exactly what John Major had tried to do and he would be very pleased if he could do it half as well. It is very good to hear that the solid voice of the Conservative Party is not that of the Patersons and Hannans but is in favour of retaining all the good work done by the Conservative Government and then by Mr Blair’s Government in that astonishing first year.

[Lord Hamilton of Epsom]

If the House of Commons voted by an overwhelming majority to move Article 50, surely that was done on the understanding that the negotiations would be completed in two years. If the date was to be changed, surely that would need a vote in the other place.

--- Later in debate ---

[Lord Liddle]

I would like to follow that up with a relevant question to the noble Lord, Lord Kerr. I agree with all the excellent speeches in favour of this amendment. To me, the politics of the amendment is the question of whether, when exit day is discussed, Parliament knows what it is exiting to. That is the question. If Parliament does not know what it is exiting to, surely the logic is that the date should be extended until it does.

Along with my noble friend Lady Kennedy, I have recently been on Select Committee visits to Brussels, and she can confirm that there is much uncertainty about what information will be available to Parliament in the autumn of this year. If things go well, we might have a withdrawal agreement and a transition period, but the only thing on the future relationship that we will have is a political declaration. There is no question at all of there being a trade agreement when Parliament votes; it will be a political declaration. The European people to whom we talked said that they wanted that to be clear and precise. However, at the same time, people said to us, “We think that possibly your Government might quite like to get away with a fudge”. Why should Parliament be put in the position of taking this crucial decision when all the British Government are offering is a fudge?

[Lord Kerr of Kinlochard]

To respond simply to the noble Lord, Lord Adonis, it would be a political issue, not a legal or a treaty issue. My view has only the same weight as anybody else’s, but I would say that if one sought an extension in order to carry on a negotiation, it would be very doubtful that one would get it. However, if one sought an extension because Parliament had decided that the terms of the deal available were such that they should be put to the country at large in a second referendum, I am convinced that that request for an extension would be granted.

[Lord True]

It is very interesting that the noble Lord, Lord Adonis, has added a fifth element to the dandelion clock: this year, next year, sometime, never, and a second referendum. The idea of a second referendum is spreading across the Committee. However, returning to the point that the noble Lord, Lord Kerr, made, I was taken up for using a phrase as a lay man, just as my physics teacher used to take me up for not really understanding “light”. When I talk about an Article 50 date, it is the date that flows as a consequence of the article and the decision that Parliament has taken by an overwhelming majority, as my noble friend Lord Hamilton said. The date of 29 March is the date that everybody, from Monsieur Barnier to everyone else, is working to. Therefore, in lay man’s terms, that is what I mean by the date which would have to be changed, and I submit it would have to be changed in tandem. That is why I oppose moving “exit day” and the date out of the Bill.

European Union (Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, it is hard to follow the noble Lord, Lord Saatchi, and it is hard to follow Warwickshire cricket. I was going to say that the speech which has made the most impact on me so far in the debate was that of the noble Lord, Lord Bridges, yesterday. He spoke of the need for us to decide what kind of country we want, because only when we know what we want to be will we know what relationship with Europe is right for us. Not for the first time, he called on the Government to be,

“honest with themselves and the public about the choices we face. Then, the Prime Minister and her Cabinet must make those choices … to govern is to choose. As we face the biggest challenge this country has faced since the Second World War, keeping every option open is no longer an option”.—[Official Report, 30/1/18; col. 1423.]

I could not agree more. I could not put it better. I am very uneasy about the silence of the sphinx. I am very uneasy when I see free-market wolves in cuddly sheep’s clothing promising undiminished farm support. I am very uneasy about fierce critics of the working time regulations promising that there will be no change to labour rights, employment rights, social rights and equality rights, and that we do not need to worry about giving Ministers the power to make changes to such rights by statutory instrument.

More generally, the Government need to come clean on whether taking back control means a bonfire of controls, and whether we are going to change our socioeconomic model, as in autumn 2015 the Chancellor said we might have to do. We need to know for two reasons. First, the Bill asks us to give them the matches to light the bonfire if they want to. Secondly, our partners across the Channel need to know. They will decide what access we can have to their markets depending on how far we will stick to the model of how their economies—most western European economies—work.

It will not do any longer just to say that we want something deep, special, unique and bespoke: we have to define what it is. It is not enough to say—as we said, far too soon—what we do not want. Mrs Merkel is quite right: we have now to say what we do want. When the 27 say that the British red lines mean that the British can have no more than a “Canadian” deal, we must stop putting our fingers in our ears and chanting “la la la—I can’t hear you”. It is their call: they will say what deal we will get. There are red lines, but it is their call. Getting a Cabinet to agree and stick to a line is always difficult, but that is the job. A sphinx- like silence will not do any more.

Of course we must pass this Bill, for all the reasons mentioned by so many noble Lords. If in the end we leave the EU, EU law has to be instantly repatriated to ensure legal continuity. We must, therefore, pass the Bill, and I am confident that we will improve it. I would like to see improvements in four areas.

The first is the area that the noble Lord, Lord Lisvane, among others, drew attention to: I do not see any need for such a massive transfer of power from legislature to Executive, and on that I very much agree with the warning from the noble and learned Lord, Lord Judge. For me, the lightbulb moment was spotting Clause 9(2), where Ministers take the power to change—by delegated regulation—this Act. So we spend the next three months working day and night to improve the Bill and when it is on the statute book the Minister, with a flick of his pen, can cross out our work. That cannot be right. In the words of the Constitution Committee, it gives Ministers,

“far greater latitude than is constitutionally acceptable”.

Secondly, as a Scotsman I of course listened very carefully to the noble and learned Lords, Lord Hope, Lord Wallace of Tankerness and Lord Mackay, and it seems to me that they are right: there is no need to attack and overturn the central principle of the devolution settlement—and there will be a huge price to be paid if we do. I do not understand the sphinx-like disdain for consultation with the devolved Administrations. It is exactly a year since the Prime Minister last met her devolved Administration colleagues in the JMC, the top-level committee set up for consultation with the devolved Administrations—a whole year. That cannot be right. I very much hope that the Minister will bring forward an agreed amendment to Clause 11 very soon, but we may need to nudge the process a bit and perhaps also make sure that the Belfast principles, as set out in the Northern Ireland Act 1998, cannot be undercut by powers taken in this Bill.

Thirdly, like the noble Lord, Lord Hannay, I have difficulty understanding the link between this Bill and the stand-still transition period that, it seems, we want. The 27 reminded us in the mandate that they agreed on Monday that in the transition period the ECJ’s jurisdiction will rule. The Prime Minister acknowledged that in her Florence speech. Why, therefore, does the Bill strike out the ECJ’s jurisdiction? We will only have to put it back again if we get a transition period.

Lastly, I am uneasy that Ministers may try to duck out of the meaningful vote that we have been promised when the outcome of the negotiations is clear. Suppose that there is no deal. Suppose also that by then we have a different Prime Minister—the sphinx sits on shifting sands. Suppose that we have a Prime Minister who believes that Brussels should whistle for the money. Suppose that the negotiations break down. Will we get the meaningful vote to ensure that Parliament cannot be bypassed? This Bill has to guarantee that in all circumstances the moment of truth will definitely come—and come at a time when we still have the options of extending withdrawal negotiations, taking back the Article 50 notification letter or consulting the country about doing so.

Brexit: Deal or No Deal (European Union Committee Report)

Lord Kerr of Kinlochard Excerpts

Tuesday 16th January 2018 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I think it is a very good report, and it is clear that the noble Lord, Lord Whitty, would make a superb FCO Permanent Secretary. Since the report came out, the story has moved on a little. It is now clear that no deal would be even more damaging than the report suggests, but it is also clear that the risk of no deal is now rather lower than it suggests. I mean because of the Prime Minister’s agreement in December, approved by the European Council in December. On citizens’ rights there are still a few “t”s to cross and “i”s to dot, but it seems wildly unlikely that a file which should never have been brought into the negotiation at all will now not be successfully closed, whatever else happens in the negotiations. As the report states, it is really time that the Government stopped saying that:

“Nothing is agreed until everything is agreed”.


It is clear that, on citizens’ rights, we have the outlines of an agreement.

We have more than that on money. The Prime Minister and Presidents Tusk and Juncker have shaken hands on a finance deal. However much some in London may try to present the deal as the price of future market access, that is not how it was computed. With a little more to come on pensions and if guarantees are called, there is now a mutually agreed computation of the costs to which we were already committed, and to which we are now doubly committed.

I have to tell the noble Lord, Lord Hamilton, that I see no chance that any UK Government would disown the deal and refuse to pay—no chance whatsoever. If we did, there would be serious bond market and credit-rating consequences: ask Argentina, ask Venezuela. There would be legal consequences, and I cannot see how we could win in court or before any arbiter. There would be trade consequences for UK enterprise, because it could hardly expect open market access to the EU if the UK was in default of a financial obligation to the EU. There would be wider trader consequences: in the WTO, we need unanimous approval of our revised tariff schedules and quotas, and I am not sure that the EU would be totally co-operative in that exercise. In short, default would be a disaster. A deal is a deal, and a deal done at prime-ministerial level is a doubly done deal.

At least two files in the negotiation are now in practice closed. Of course, on money, rash suggestions in London that the finance deal was not legally binding but merely “a direction of travel” have led the 27 to insist that the first bit of business this term is to turn the deal into a legally binding text, but it was politically and morally binding the moment the Prime Minister shook hands on it and the European Council approved it. I had thought there was a risk of no deal precisely because I worried that the Prime Minister might listen to her Foreign Secretary and decide that, on money, the right course was to tell the 27 to “go whistle” for it. They would undoubtedly then have refused to move on to discuss anything else and there would have been a very high chance of no deal, but that has gone.

As for what happens now, I think a standstill agreement will be quite easily reached, and quite soon. It will not be an implementation agreement because there is nothing to implement; it will not be a transition agreement because there is nothing to transit to. The eventual deal, if we leave, will be reached only after we have left. The sequence on standstill would be very similar to the one which played out last year on money. The Commission will produce a draft mandate—actually, it already has it in the 29 April text of last year. The 27 member states will toughen it up a bit, as they did on the money. According to today’s Financial Times, that process has already started. We will huff and puff but, in the end, we will basically come to heel. The 27 will tell us that, provided it is for a limited period, a transition agreement—a standstill agreement—can be written on an Article 50 legal base, but the key will be that it should be a very short deal, so it is a part of the withdrawal process rather than a continuing new relationship between a third country and the EU. That is probably the answer to the legal conundrum that the report raised and the noble Lord, Lord Whitty, highlighted. They will say, “Of course you can, if you want to, for a limited period after you’ve left, retain precisely the full market access you now have, provided that you apply the whole acquis, respect ECJ jurisdiction in full and respect the four freedoms, all four of them—and all that despite your having no votes, no MEPs, no judges and no Commissioner. But if that’s what you want, you can have it for a strictly limited period—and it has to be limited, because the lawyers will insist”.

We will huff and puff. Mr Johnson will say, “Ah, but there are no new EU regulations or laws”. Mr Gove will say, “Ah, but no CFP”. Mr Fox will say that he wants to be free to undercut the common commercial policy—but the other side will say that we cannot cherry pick. We will come to heel in the end, probably quite quickly, because it is very important to avoid the cliff edge next year. We will not avoid it, but we will postpone it while the debate moves on to whether we may cherry pick in respect of the future pound arrangement, and Mr Barnier will offer us Canadian terms. At least we will not be able for much longer to talk bafflingly about a bespoke arrangement without explaining what it is or saying what we want.

As it becomes clear in the end that we cannot have our cake and eat it, maybe we will stop and think about whether it all makes sense—whether a standstill period when we have to take all EU rules but have no say in making them, and an eventual partnership arrangement where our principal export services are systematically disadvantaged, is really what we want. I do not think that the question is now “deal or no deal”. That question has been overtaken. On money there is a deal, and this country does not break its word. The question now is whether any future deal can be a good deal, a deal as good as the one that we now have as a full member of the world’s largest single market and free trade area. If it were to emerge that the answer is no, at least we can remember that an Article 50 notification can always be withdrawn.

Brexit: Revocability

Lord Kerr of Kinlochard Excerpts

Wednesday 20th December 2017 Lords Chamber

[Lord Faulks (Con)]

My Lords—

[Lord Kerr of Kinlochard (CB)]

My Lords—

[Lord Spicer (Con)]

My Lords—

--- Later in debate ---

[Lord Callanan]

I thank my noble friend for his opinion. He is of course correct.

[Lord Kerr of Kinlochard]

This being the season of good will, I absolutely do not want to get the Minister into hot water again. Does he recall the view of the President of the European Parliament:

“If the UK wanted to stay, everybody would be in favour”?


On the legal issue of unilateral withdrawal of an Article 50 notification, does he recall the article enjoining honesty published on 9 November by his distinguished predecessor, the noble Lord, Lord Bridges of Headley, in which the noble Lord made it clear that there is “no legal basis” for the view that a notification cannot be unilaterally withdrawn? Does this perhaps explain why the Minister is so reluctant to reveal the law officers’ opinion?

Brexit: Data Transfer

Lord Kerr of Kinlochard Excerpts

Thursday 16th November 2017 Lords Chamber

[Lord Callanan]

My Lords, we have said that, in exiting the European Union, we will bring to an end the direct jurisdiction of the Court of Justice of the European Union in the UK. This is without prejudice to the final details of the negotiations and the implementation period—but we are very clear on that point.

[Lord Kerr of Kinlochard (CB)]

My Lords, I am very grateful to the Minister for correcting the record of what he inadvertently said on Monday when he affirmed that the Supreme Court expressed no view on the question of revocability—on which I have a clear view. Perhaps he might suggest to his noble friend Lord Ridley, who misled him into misleading the House, that it would be appropriate also for him to withdraw his remarks.

[Lord Callanan]

The noble Lord has a widely expressed opinion on Article 50, but I think he will find that 17.4 million of our fellow citizens also had an opinion.

UK and EU Relations

Lord Kerr of Kinlochard Excerpts

Tuesday 12th September 2017 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I want to make three points. First, there was a document on citizens’ rights that we put forward in the negotiations in June. That was a genuine negotiating document. None of the documents since is a negotiating document. None of the documents we are talking about today gives the negotiators anything to get their teeth into. They are lists, options, essays—some are rather interesting little essays—but clearly they are aimed mainly at a domestic audience and the aim is to avoid any new outburst of disagreement in the party. So they do not say anything.

My second point is that this is counterproductive. The papers have gone down rather badly in Brussels. On 31 August, Mr Barnier said:

“The UK wants to take back control, it wants to adopt its own standards and regulations. But it also wants to have these standards recognised automatically in the EU. That is what UK papers ask for. This is simply impossible”.


A further cause of doubt in Brussels is the confusion between what we say and what we do. If it is the case that, as the CBI and the TUC want, the Government now think that the right course—at least for an interim period—is to stay inside the single market and possibly the customs union, there is a real negotiation to be had. Why do the Government publish a withdrawal Bill that eliminates completely the umpire of the single market—the European Court of Justice—on Brexit day? You cannot say, “I want to play in your game, but I don’t respect the umpire”. If we want to stay in the customs unions, why does somebody not switch off Dr Fox? There is an inconsistency inside the Government. We need them to come forward with a clear, achievable objective and then with precise negotiating proposals which would get us towards that objective. They need to avoid actions and speeches that are inconsistent with it.

Thirdly, the worst feature of the papers we are talking about is that there is not one on money. I agree that the bill that the European Union—the 27—has presented is grossly inflated. Of course it is. It is far higher than the first draft which Mr Barnier produced. Do not attack Mr Barnier: it is the member states that inflated the bill. I agree that the decision on sequencing that the European Council took was the wrong one. It is a pity that their position is, “Agree on the money before we talk about anything else”. I understand why they reached that decision. It is because they had heard too many people in this country saying that we were just going to do a runner and they could whistle for the money. That is why they said, “You’ve got to show us sufficient progress on money before we move on”. That was a mistake, but we are where we are. Unless we have put forward counterproposals on money and a real negotiation has started, it is not conceivable that next month’s European Council could conclude that sufficient progress has been made.

I have one final point to add. All these papers describe—in rather optimistic, aspirational terms—a special relationship or special partnership with the European Union, which we will have left. The European Union runs on law. If there is no agreement on money—if we go to a court of arbitration to settle a dispute over real or alleged legal commitments—there will be no agreements on anything. The European Union will be unable to conclude agreements on anything. The special partnership will not exist and all these little papers will be so much waste paper. We need to put some money on the table and start a real negotiation. If we do not, we are risking the cliff edge—no relationship at all—and that would be very bad indeed.

--- Later in debate ---

[Baroness Anelay of St Johns]

My Lords, I put the position very early on, in my winding-up speech, I hope, when I explained that the Prime Minister had made it clear that we were prepared now to ramp up the speed and increase the number of days for negotiation. That has not yet happened, but clearly what has happened is constructive and we now have time before 25 September for some of the technical agreements—which are right on the cusp of being made—to be sealed. That is to be welcomed. There is good will on both sides in this negotiation.

[Lord Kerr of Kinlochard]

My Lords—

Motion agreed.

Update on the Progress of EU Exit Negotiations

Lord Kerr of Kinlochard Excerpts

Tuesday 5th September 2017 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, picking up the Minister’s answer to the question from the noble Baroness, Lady Hayter, about the devolved Administrations, I think I heard her say that the JMC (EN), the ministerial committee set up with the devolved Administrations to co-ordinate Brexit positions, will meet next month. Is that true? I see the Minister nodding. Excellent; I am delighted to hear that. Why has it not met since February? Why was none of these 10 papers, these little essays that were sent out in the summer, seen in draft by the devolved Administrations? Why did they not see in draft the only serious negotiating paper that the Government have put forward, the interesting paper on citizens’ rights? Why are the Government so determined systematically to break the promises given to the devolved Administrations about close consultation? While she is at it, could the Minister please give us an example of a successful money negotiation where one of the parties refused to put forward any numbers?

[Baroness Anelay of St Johns]

My Lords, the EU has not put forward any numbers. This is a negotiation and, I would like to say, a good-natured one. Clearly there are occasions when people like to take certain positions in the press, but those who are negotiating know each other, work well with each other and want to come to a result that is good for all of us.

With regard to the devolved Administrations, there has been continuous conversation not only between Ministers but between officials, where so much of the detailed technical work can be done. That will continue. As soon as I was appointed, I attended one of the parallel meetings that happen with the devolved Administrations, the general committee that meets about Europe, not about the negotiations. It was a privilege to be able to talk to representatives of Scotland and Wales. It is of course a disappointment that we are not yet able to talk to representatives of Northern Ireland until the Executive issue is resolved.